The legal landscape has improved for the men and women who served in the military but then found it was hard or impossible to access promised rights to re-employment and health care benefits when they returned from duty. In June 2022, the U.S. Supreme Court held that a veteran who was disallowed re-employment was wrongfully denied medical benefits. This decision resulted in two important developments for our veterans because each supplements rights to benefits already available to veterans under USERRA (the Uniformed Services Employment and Re-employment Rights Act of 1994), other federal laws like the ADA (Americans with Disabilities Act), and Texas state law. All are closely tied together:
- the first, which expands re-employment rights, and
- the second, which expands medical benefits.
Some Kilgore Lawyers Are Also Veterans. We Know How to Help.
Are you having problems with employment or re-employment discrimination? To learn about our legal practice for Vets, click here Servicemember Rights. Click here to learn more about discrimination Employment Discrimination. To read an article on USERRA, click here USERRA. To get the conversation started about your legal rights, click this link Contact Kilgore Law.
Torres v. Texas DPS (Texas Department of Public Safety) and Disability Benefits
The President has signed into law the PACT Act, known as the Sergeant First Class (SFC) Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act. The PACT Act expands medical benefits through the VA for Veterans exposed to burn pits and toxic substances. Captain Torres suffered wounds described as invisible injuries, likely the result of exposure to toxic burn pits. He enlisted in the Army Reserve in 1989. In 2007, he was called to active duty and deployed to Iraq. While serving, he was exposed to toxic burn pits, a method of garbage disposal that sets fire to all manner of trash, human waste, and military equipment. He received an honorable discharge but came home with constrictive bronchitis, a respiratory condition that narrowed his airways and made breathing difficult. These ailments, Torres claimed, changed his life, and left him unable to work at his former job as a Texas State Trooper. He asked his former employer, the Texas DPS, to accommodate his condition by re-employing him in a different role. Texas refused to do so.
State of Texas Tried to Dismiss the Disabilities Lawsuit, Claiming Sovereign Immunity
Torres sued Texas in state court. He argued that Texas violated USERRA’s mandate that state employers rehire returning veterans, use reasonable efforts to accommodate any service-related disability, or find an equivalent position where the disability prevents the veteran from holding a prior position. Texas moved to dismiss the lawsuit, claiming sovereign immunity. Sovereign immunity is a doctrine that asserts that Congress (in this case, by means of USERRA) cannot authorize private lawsuits against a nonconsenting state. If Torres had sued a private employer, sovereign immunity would not have been relevant. The trial court decided for Torres, but the appellate court reversed that decision. However, the US Supreme Court held that by ratifying the Constitution, the states agreed that their sovereignty would yield to the exercise of a particular federal power, in this case, the national power to raise and support the armed forces.
What is Federalism?
The concept of federalism works to balance the power of states against the power of the national government, giving both some authority. It is meant to divide government power, so that a national government cannot have the final say over all issues, everywhere. The US Supreme Court’s decision in the Torres matter goes deep into the weeds of federalism. The US Supreme Court held that the national power to raise and support the armed forces outweighed any state’s interest in the doctrine of sovereign immunity. Congress, therefore, has the power through federal laws like USERRA, to authorize private damages suits against non-consenting states. The bottom line in this case is that veterans who seek to enforce USERRA rights against previous employers, who happen to be states, do have the right to bring lawsuits.
USERRA and Disability Benefits
If a veteran has a disability incurred in or aggravated by his or her service, an employer must make reasonable efforts to accommodate the disability and return the veteran to the position in which he or she would have been employed but for the military service. If the veteran is not qualified for that position due to disability, USERRA also requires the employer to make reasonable efforts to help qualify the veteran for a job of equivalent seniority, status, duties and pay, which he or she is qualified to perform or could become qualified to perform. This could include providing training or retraining for the position at no cost to the veteran. These were the benefits Torres sought.
Definition of a Disability Incurred in the Course of Military Service or Aggravated Because of It
The lifelong injuries caused by bullets and bombs are typically easy to recognize. Not so, however, with equally devastating invisible injuries such as PTSD or exposure to carcinogens. The effects of these injuries may not appear for many years. That may be where The Pact Act can be effective for those exposed to toxic burn pits, Agent Orange, and radiation.
The PACT Act Briefly Explained
Briefly, the PACT Act expands and adds benefits for veterans including:
- Expands and extends eligibility for VA medical benefits for veterans with toxic exposures
and veterans of the Vietnam War, the Gulf War, and post-9/11 eras;
- Adds more than 20 new presumptive conditions for burn pit and other toxic exposures;
- Adds more presumptive-exposure locations for Agent Orange and radiation;
- Requires the VA to provide a toxic exposure screening to every veteran enrolled in
VA health care; and
- Helps improve research, staff education, and toxic exposure treatments.
Focus on the word presumptive. In law, a presumption is a powerful and slippery issue. It eases the burden of proof considerably when an injured veteran tries to show that a particular event or exposure that occurred in the course of military service caused a disability years later. It can also be limited and trimmed to the point of near non-existence in a court of law.
Interpretation of USERRA as it Relates to the PACT Act Will be Explored Through Future Litigation
The Torres decision came down weeks before the PACT Act became law. In the Torres case, the Supreme Court did not decide that Texas was liable. It simply remanded the case back to the lower court for a decision that does not depend on sovereign immunity. Not all federal disability statutes use the same presumptions. The Torres decision seems to imply that exposure to toxic burn pits might qualify as the cause of a disability incurred or aggravated in the course of military service.
The Texas Military
The Texas Government Code says that members of the Texas National Guard and other state military forces who are called to active state duty by the governor are entitled to the same benefits and protections as USERRA provides to national servicemembers. Applying the PACT Act via USERRA to those who have served in the Texas National Guard and other state military forces seems like a stretch at this writing. There are few if any toxic burn pits and Agent Orange situations in Texas. Were the presumptions of the PACT Act applied to exposure to carcinogens in general, the result might be different. This remains in the realm of future court decisions.
Reach out to Kilgore’s Veteran Lawyers for Legal Help with Obtaining Military Benefits
Some of our Texas employment lawyers are military veterans who understand how to win employment, discrimination, and disability benefits denials. Use this link to Contact Kilgore with your questions and concerns.